Turtle Talk

Ok, remember when I said this morning the California inquiry and notice process is in a . . . growth process? Here is another example. This case disagrees with the really not great In re Austin J. case and is from the same appellate district.

In re T.G. returns to the low bar for notice and inquiry California appellate courts have traditionally adhered to.

We agree the Department failed to adequately investigate Tamara’s claim of Indian ancestry and the juvenile court failed to ensure an appropriate inquiry had been conducted before concluding, if it ever actually did, ICWA did not apply to these proceedings. In reaching this result, we disagree with the holding in In re Austin J. (2020) 47 Cal.App.5th 870, 888-889 (Austin J.) that amendments enacted by Assembly Bill No. 3176 (2017-2018 Reg. Sess.) (Assembly Bill 3176) were intended to limit the Department’s robust duty of inquiry. Accordingly, we conditionally reverse the orders for legal guardianship and remand the matters to allow the Department and the juvenile court to rectify their errors and to take all other necessary corrective actions.

So again, if you are practicing in California, this is a vital area to be following. If you are not practicing in California, I think it’s worth seeing how the new changes to the state laws shake out on appeals this year (2021). If you are a tribal attorney, know that California is supposed to be contacting a tribe very early in the proceedings, even if it is not with a formal notice packet.

Application of ICWA Case out of Arkansas Court of Appeals

January 8, 2021Kate Fort

Borah v. Arkansas Dep’t of Human Services Download

This is an interesting and frustration case on the law. There are a few states, and I believe both Arkansas and Missouri are two, where a parent has to preserve any ICWA issue for appeal. That is not the case in a number of other states. But in this case, the agency and state attorney agree there was error in not noticing the Tribe (Klamath) on the TPR, and that this failure could upend any permanency findings under 25 U.S.C. 1914. They ask the court to remand for notice. However, the Court held:

Accordingly, we cannot rely on Dominguez to remand in this instance. Unlike the situation in Dominguez, the final order herein terminated both parents’ rights, leaving no parental right unaddressed. Here, the application of the ICWA cannot be addressed on remand without reversing the circuit court’s TPR order. We hold that the ICWA issue is not preserved for appellate review.

Adjudication orders are immediately appealable. Ark. Sup. Ct. R. 6-9(a)(1)(A) (2019). A parent’s failure to appeal rulings made in an adjudication order precludes appellate review of those findings in an appeal from a subsequent order. Ashcroft v. Ark. Dep’t of Human Servs., 2010 Ark. App. 244, at 8, 374 S.W.3d 743, 747. No party appealed the circuit court’s findings that the ICWA did not apply or that neither Amanda nor A.W. were members of an Indian tribe. Further, we have held that compliance with the notice requirements of the ICWA must be raised below in order to be preserved for appellate review. Lauman v. Ark. Dep’t of Human Servs., 2010 Ark. App. 564, at 2.

I’m also just going to leave the facts here about the ruling, re. application of ICWA:

The court noted that Amanda had provided a roll number for the Klamath Modoc tribe at the probable-cause hearing, that the Klamath Modoc tribe had been notified on February 12, and that the tribe had not responded nor contacted DHS; therefore, the court found that “at this time,” the ICWA “does not apply.” In a separate finding, the circuit court stated, “[Amanda] does not have membership in or descent from an Indian tribe; the legal father does not have membership in or descent from an Indian tribe; the juvenile does not have membership in or descent from an Indian tribe.”

Job Announcements

January 8, 2021Monica Williamson

To post an open Indian law or leadership job to Turtle Talk, send the following information to indigenous@law.msu.edu:

In the email body, a typed brief description of the position which includes
1. position title,
2. location (city, state),
3. main duties,
4. closing date,
5. and any other pertinent details such as links to application;
An attached PDF job announcement.

The National Association of Criminal Defense Lawyers

2021 Summer Fellowship in criminal law, partly or entirely virtual. First and second year law students from historically underrepresented backgrounds, in good academic standing, and enrolled at an ABA-accredited law school are invited to apply. This fellowship provides a $500/week stipend over its eight weeks. Specific start and stop dates are flexible but typically start in late May or early June. More information, including application instructions, a downloadable application, and a sample of previous placement locations, is available at the link above.

The Burns Paiute Tribe

Tribal Court Prosecutor, Burns, OR. Requesting proposals from qualified individuals interested in serving as the Tribe’s Prosecutor on a part-time, contractual basis for two-year term beginning no later than January 11 ,2021. Request a proposal packet from Tribal Council Secretary, Tracy Kennedy at BPTTribalCouncil@burnspaiute.onmicrosoft.com or by calling 541-573-8011. Proposals must be submitted at the above address no later than 5:00 pm, January 10, 2021. Please see the RFP for more information.

Pueblo of Isleta

Associate General Counsel, Isleta, NM. Under the direction of General Counsel, provides professional legal counsel in the areas of tribal government, federal-tribal relations, jurisdiction issues, environmental and natural resources law and policy, economic development, tribal business enterprise, and employment issues. Works to protect tribal assets and preserve tribal sovereignty. Position is open until filled. Please see the position description for more information.

Saginaw Chippewa Indian Tribe of Michigan

Tribal Prosecutor, Mount Pleasant, MI.Under the supervision of Tribal Council, work closely with tribal law enforcement and judicial officials to effectively administer justice on the Isabella Indian Reservation on behalf of the Saginaw Chippewa Indian Tribe of Michigan. Prosecute crimes under the jurisdiction of the Saginaw Chippewa Indian Tribe within the exterior boundaries of the Isabella Reservation. Act as Tribal Presenter in Child Abuse and Neglect cases. All staff in Prosecutor’s office must adhere to mandated reporting laws. In order to be considered for this position you must apply at www.sagchip.org click on employment at the top of the page then click apply now.

Galanda Broadman, PLLC,

Litigation Associate, Seattle, WA. The firm seeks an associate who is deeply committed to representing Indian interests, who is state bar licensed, preferably in Washington State, and who has civil litigation or a judicial clerk experience, preferably for at least two to five years. Proven motion and civil rules practice, if not trial experience, and the ability to self-direct are critical. Please see the position description for more information.

Lac Vieux Desert Band of Lake Superior Chippewa Indians

Assistant Prosecutor, Watersmeet, MI. Provide vertical prosecution of all sexual assault, domestic violence and stalking cases in the LVD Court as well as assist in prosecution of other criminal matters. This position also includes collaboration with Tribal Police to create and implement a training program for effective investigation of sexual assault, domestic violence and stalking involving tribal members both on and off Tribal lands. For more information, please see the job description. Deadline for application is January 5, 2021. Application Here.

Tohono O’odham Legislative Branch

Attorney General. The attorney general provides legal advice and representation to all officials, agencies, departments, divisions and branches of the Tohono O’odham Nation, a federally recognized Indian tribe with 2.8 million acres of reservation land in Southern Arizona. The attorney general represents the Nation in all legal proceedings, and in other matters that affect the legal interests of the Nation; advises senior management and tribal officials; and supervises assistant attorneys general and contract attorneys. Please see the position description for more information.

Assistant Legislative Attorney. Under the direction of the Legislative Attorney, provides legal advice and representation to the Legislative council and standing committees on a wide range of issues affecting the Tohono O’odham Nation; works with tribal, federal and state officials as well as national- and state-level tribal advocacy groups, other tribes, private individuals and entities; maintains confidentiality of all privileged information. Please see the position description for more information.

Pokagon Band of Potawatomi Indians

RFP, Electronic Data Court Case Management, Dowagiac, MI. Supply and Implement an Electronic Data Court Case Management System for the Pokagon Band Tribal Court System. Closing date is January 07, 2021, no later than 5:00 P.M. Telephone confirmation of receipt of the proposal may be made by calling the Project Manager at (269) 783-0505. Proposals must be emailed to the Project Manager, Tribal Court Administrator Stephen Rambeaux at stephen.rambeaux@pokagonband-nsn.gov. For more information please see the position description, W9 Form, and National Sex Offender Registry Check.

Oglala Sioux Legal Department

Three (3) In-House Counsel Positions

Lead
Senior Associate
Jr. Associate

The In-House Counsel(s) will work for the OST Council, the Executive Committee, and with two (2) Tribal Council Standing Committees each as listed below: Land Committee, Health and Human Services Committee, Education Committee, Economic and Business Development Committee, Law and Order Committee and Finance Committee. SUBMIT DOCUMENTS TO: Lisa Cummings, OST Legal Department, PO Box 1204, Pine Ridge, SD 57770 – EMAIL: LisaC@ostlegal.org or FAX: 605-867-2140. See the description for more information. Qualifications here.

The Wabanaki Alliance

Executive Director, Maine. The Wabanaki Alliance is an inter-tribal political advocacy organization and their mission is to advance and advocate for policy on the state and federal level which will better the lives of all members of the tribes in Maine. The focus of the position will be participating in changing state statute regarding the Maine Indian Claims Settlement of 1980 during the 130th Maine legislative session. For more information see the position description.

Miller Nash Graham & Dunn LLP

First-Year Law Student Diversity Fellowship, Seattle, WA & Portland, OR. Each fellowship recipient will receive a paid, ten-week summer associate position, and after successful completion of the summer associate fellowship, will be awarded a $15,000 scholarship. Closing date: 1/6/2021. For more information, please see the position description.

National Indian Gaming Commission

Intern, Washington, D.C. Under the supervision of the Office of General Counsel attorneys, the intern may assist with a variety of matters, including legal research and writing for legal advisory opinions and other memoranda; reviewing tribal gaming ordinances, proposed management contracts, and other tribal submissions; and providing legal support in enforcement actions and appeals. The intern will be assigned at least one major research and writing project. The selected applicant will be expected to participate for a minimum of 10 weeks, 30 hours per week. The volunteer internship is unpaid and will be conducted virtually using video-conferencing and collaboration software platforms. Depending on school requirements, the internship may be converted to an externship for course credit. The announcement closes on January 22, 2021 at 11:59 p.m.

Pokégnek Bodéwadmik Pokagon Band of Potawatomi

Strategic Growth Consulting Services, Dowagiac, MI. The Pokagon Development Authority is soliciting proposals from qualified firms interested in providing Strategic Growth Services to assist the Board in achieving the objectives of the Code. Which include increasing and diversifying the Pokagon Band’s non-gaming economic development. Closing Date is set at 5:00p.m., EDT on February 5, 2021. Send Proposals to ed.williams@pokagonband-nsn.gov. Please see the position description for more information.

Yurok Tribe

Executive Director, Klamath, CA. Under guidance of the Yurok Tribal Council the incumbent is responsible for the effective and efficient administration of overall tribal operations, including guiding Tribally-owned corporations when specifically delegated, serves as the principal operating executive for implementation of the Tribal policies and legislative directives including the direct oversight of the department directors and/or Deputy Executive Directors as well as staff in the Administration Department. Visit www.yuroktribe.org for an application.

Yurok Tribal Court

Staff Attorney, Yurok Legal Access Center, Klamath, CA at the Yurok Justice Center. Main duties include the assistance of filing paperwork in civil matters in tribal and state courts. There will be a focus on matters involving elders for this position. Closing date: 1/28/2021. Applications can be found at: https://www.yuroktribe.org/job-opportunities.

Project Manager, To’ Kee Skuy Soo Ney-wo-chek’, the tribe’s MMIW project. The position will be located in Klamath, CA with service area to include Humboldt County, Del Norte County, and Trinity county. Coordination with law enforcement, families, survivors, and local service providers is a key component to this position. Closing Date: 1/22/2021. Applications can be found at: https://www.yuroktribe.org/job-opportunities.

The Puyallup Tribe

Associate Judge, Tacoma, WA. Serves as hearing judge for the Puyallup Tribal Court in accordance with the tribal Judicial Administrative Code. The term of the Associate Judge shall be three (3) years from the date of appointment by the Tribal Council. A judge may be reappointed at the expiration of a term in the discretion of the Tribal Council. Please see the link for more information.

The Association of Village Council Presidents (AVCP)

RFP. Soliciting proposals from qualified companies to provide training and technical assistance for audit preparation for Tribes in the AVCP region. This service will build the capacity of AVCP Tribes to successfully complete a Single Audit. For important dates to remember, please see the attachment. Proposals must be received by 4:00 P.M., A.S.T., 02/11/2021. Please see the request for proposal for more information.

Spokane Tribe of Indians

Deputy Executive, Wellpinit, WA. Supports the Executive Director (ED) in day-to-day operations, and at times acts on behalf of the ED in his/her absence. Assists to plan, organize, coordinate and manage programs, as well as facilitate and assist in development of departmental goals, objectives, and budgets in support of the ED and the Tribe. May directly or indirectly supervise Directors and Managers, and supports tribal programs to ensure timely, consistent and effective execution of departmental functions. Please see the description for more information.

See posts from December 11, 2020.

Stacy Leeds Joins ASU Law Faculty

January 8, 2021Matthew L.M. Fletcher

Congrats to Professor/Dean/Vice-Chancellor/Justice Leeds! And to ASU!

Here.

Notice Case from Montana [ICWA]

January 8, 2021Kate Fort

In re M.T.Download

This is the year of notice and reason to know. Courts are finally wrestling with what the regulations do and do not require–and there is considerable concern about what to do if there is no response from a tribe.

Whenever a court “knows or has reason to know” that a child is an “Indian child” under ICWA, the court is to verify the child’s status prior to conducting termination proceedings. 25 U.S.C. § 1912(a); In re L.D., 2018 MT 60, ¶ 13, 391 Mont. 33, 414 P.3d 768 (internal citations omitted). Whether a child is eligible for tribal membership is a question of fact dependent upon the child’s actual ancestry, and an Indian tribe provides the determination conclusively as a matter of law. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted); In re Adoption of Riffle, 273 Mont. 237, 242, 902 P.2d 542, 545 (1995).

¶22 It follows that a district court does not have authority to make a de novo conclusion regarding eligibility. 25 C.F.R. § 23.108(b); In re L.D., ¶ 14 (internal citations omitted). Instead, the district court must determine “(1) whether the court has reason to believe that a subject child may be an ‘Indian child’ and (2) whether an Indian tribe has conclusively determined that the child is a member or eligible for tribal membership.” In re L.D., ¶ 14 (internal citations omitted). Absent a conclusive tribal determination, a court abuses its discretion by terminating parental rights if there is “reason to believe” the child is an Indian child. In re L.D., ¶ 14 (internal citation omitted).

In this case, however, the issue was the Agency didn’t contact the Tribe at all, leading to the remand.

We hold the District Court abused its discretion in terminating Mother’s parental rights without a conclusive tribal determination of tribal membership status and enrollment eligibility in the United Keetoowah. Since the United Keetoowah is a federally recognized Cherokee tribe,3 and the Department did not contact the tribe, the District Court made a de novo determination regarding M.T. and L.T.’s United Keetoowah tribal eligibility, a determination which is in the sole province of the tribe.

Notice Case out of California [ICWA]

January 8, 2021Kate Fort

In re Dominic F.Download

If you find the current published notice and inquiry cases out of California particularly confusing, join the club (and I’ve been trying to sort them out!). I think the important thing for tribal attorneys to know is that California is trying to do very early contact during the inquiry phase before they send formal notice. For some tribes this is very welcome, and for others, it’s a big change in practice. However, this does mean that California is trying to formalized very specific steps into law–from initial inquiry, reason to believe, further inquiry, reason to know, notice (I think). This means California case law probably won’t be particularly useful in this area in other state appeals.

Guardianship Case out of California [ICWA]

January 8, 2021Kate Fort

Well all, I have absolutely fallen down on the ICWA TurtleTalk beat since the Washington Supreme Court decision in Z.J.G. Since I am getting older, I’m going to blame the new WordPress interface (please ignore that Fletcher is older than me and obviously figured it out just fine). So now, a series of posts with links to the reported cases since September 2020–don’t worry, this was an exceptionally small year for reported ICWA cases.

First up, In re N.S.Download

N.S. is a guardianship case (reading this, it’s possible I just wanted to end the year after Z.J.G. on a positive note). Here is the description of the lower court’s holding, which the appellate court affirmed. There is some preemption discussion on p 27-28 in the 54 page opinion, but not much.

Regarding substantial interference with N.S.’s connection to the Tribe, the court found that “once [Grandmother] is properly informed, once the expectations are concretely articulated, . . . she will encourage [N.S.] to learn about his heritage.” The court further found that given N.S.’s development, maturity, and curiosity, he would not “permit anybody [to] dissuad[e] him from making up his own mind as to not just his Indian heritage, but how it fits into his life.” Thus, the court concluded that there was not a compelling reason not to terminate parental rights based on a substantial interference with N.S.’s connection to the Tribe. 25

Regarding the Tribe’s identification of guardianship as the best permanent plan for N.S., the court believed that N.S.’s “guardianship was a very vital tool and opportunity for him to get to this point.” However, the court asserted that, “merely identifying guardianship to maintain the status quo would not recognize the increasing, the deep, the published connection [that N.S.] has with his grandmother.” The court found that in light of N.S.’s “current developmental progression and attachment to the grandmother,” guardianship was not in his best interests; therefore, the Tribe’s identification of guardianship as N.S.’s permanent plan had not “been established as a compelling reason not to terminate parental rights.”

Fletcher and Fort’s Rewritten Opinion in Adoptive Couple v. Baby Girl

January 8, 2021Matthew L.M. Fletcher

Fletcher and Fort posted “Intimate Choice and Autonomy: Adoptive Couple v. Baby Girl,” forthcoming in CRITICAL RACE JUDGMENTS (Cambridge Univ. Press, eds. Bennett Capers, Devon Carbado, Robin A. Lenhart, and Angela Onwuachi-Willig) (forthcoming 2021).

As if there was any doubt, we have reached the opposite outcome as the Supreme Court did back in 2013. A few excerpts:

This case is about a little girl (Baby Girl) who is a citizen of the Cherokee Nation, like her father, grandparents, and a multitude of generations before her. American Indian tribal citizenship with a federally recognized tribe is a unique concept in American law. E.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55 (1978) (“[Indian tribes] have power to make their own substantive law in internal matters. . . .”). Tribal citizens are beneficiaries of the federal government’s trust relationship with Indian tribes, and the federal government has promised to tribal citizens for centuries to assist in the maintenance of tribal governments, cultures, and sovereignty. Worcester v. Georgia, 31 U.S. 515, 556 (1831) (“[The Cherokee treaty], thus explicitly recognizing the national character of the Cherokees, and their right of self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.”).

And:

The ethically dubious acts of the Petitioners in this case extends to this Court’s amici. Several amici invoked the racist dog whistle of referring to the Petitioners as the “only family” Baby Girl has ever known. E.g., Brief for Guardian Ad Litem, as Representative of Respondent Baby Girl, Supporting Reversal at 56 (“Indeed, it is hard to imagine what liberty interest is more important to a 27-month old child than maintaining the only family bonds she has ever known, absent a strong showing of necessity.”) (emphasis added); Brief of Amica Curiae Birth Mother in Support of Petitioners at 3 (“The decision below effectively negated Birth Mother’s decision to place Baby Girl with Adoptive Couple, and ripped Baby Girl from the only family she has ever known, in derogation of both Birth Mother’s and Baby Girl’s rights and expectations under state law.”) (emphasis added); Brief of Amici Curiae Bonnie and Shannon Hofer; Roger, Loreal, and Sierra Lauderbaugh; and Craig and Esther Adams in Support of Petitioners at 38 (“[T]he lower court took non-Indian Petitioners’ adopted Indian daughter from them – destroying the only family she has ever known.”) (emphasis added); Brief of Amici Curiae National Council for Adoption in Support of Petitioners at 13-14 (“ICWA is implemented in some cases to traumatize children by forcing them into completely unknown environments, traumatizing them by removal from the only family they’d ever felt a connection with and imposing the developmental delays that come with the traumatic removal from a secure attachment.”) (emphasis added).[1] It appears that for some of our amici, the “only family” that matters is the non-Indian Petitioners’ family. For these amici, the Indian family and other biological relatives are strangers and foreigners. The only pain and shame of removal and separation that matters is that of the non-Indian family. It is apparent the “only family” dog whistle is designed to distract our attention from the ever-present bias against Indian parents and relatives in the child welfare and adoption system. This we will not accept. As noted above, this Court long has been complicit in dehumanizing Indian people. In Professor Harris’ words, “[C]ourts established whiteness as a prerequisite to the exercise of enforceable property rights.” Harris, supra, at 1724. No longer. We additionally suspect that this form of advocacy implicates American Bar Association Rules of Professional Conduct 3.4 (Fairness to Opposing Party and Counsel), 3.5 (Impartiality & Decorum of the Tribunal), 4.4 (Respect for Rights of Third Persons), and 8.4 (Misconduct).

[1] One commentator even referred to the Cherokee family here, who descend from an Indigenous nation that has been present in this hemisphere since time immemorial, as “foreign.” Thomas Sowell, Indian Child Welfare Act does not protect kids, Denton Record-Chronicle, Feb. 1, 2018, at 6A (“This little girl is just the latest in a long line of Indian children who have been ripped out of the only family they have ever known and given to someone who is a stranger to them, often living on an Indian reservation that is foreign to them.”) (emphasis added).